Editor's Note :

We are expecting one or more decisions in argued cases tomorrow at 10 a.m. We will be live-blogging the opinion(s) as they are released. However, there is no live blog of tomorrow’s oral argument in King v. Burwell. We will have coverage of that argument as soon as possible after it is finished; the transcript should be available tomorrow afternoon, and the audio will be available on Friday. Wednesday's live blog will be available here.

Court questions Michigan v. Jackson

Posted Fri, March 27th, 2009 3:43 pm by Lyle Denniston

The Supreme Court on Friday told lawyers in a pending case, heard on Jan. 13, to file new briefs on whether the Court should overrule its 1986 decision in Michigan v. Jackson. In that ruling, the Court laid down a rule designed to assure that the right to counsel was not lost in a police interrogation. The Court decided there that, once an accused individual has claimed a right to counsel at a plea hearing or other court proceeding, any waiver of that right during later police questioning would be invalid unless that individual initiated communication. The new order issued Friday afternoon on the validity of that ruling is here, issued in Montejo v. Louisiana (07-1529).

The Jackson decision is centrally at issue in Montejo. The Court granted review of that case on Oct. 1 and heard argument more than two months ago. Here is the question being reviewed: “When an indigent defendant’s right to counsel has attached and counsel has been appointed, must the defendant take additional affirmative steps to ‘accept’ the appointment in order to secure the protections of the Sixth Amendment and preclude police-initiated interrogation without counsel present?”

The Court apparently agreed to hear that issue after being told that the lower courts are split on it. The petition for Jesse Jay Montejo said: “The majority rule in the states that have considered the issue is the sensible one — that a defendant who has been appointed counsel need not take additional steps to secure the protections of the Sixth Amendment.” But the Lousiana Supreme Court, following the lead of the Fifth Circuit Court, held in Montejo’s case that “a defendant who has been appointed counsel cannot invoke the protections of Michigan v. Jackson unless the defendant has previously done something affirmatively to ‘accept’ the appointment.”

The two sides in Montejo are to file simultaneous briefs on the new question by April 14. Amicus briefs are also due that day. Reply briefs are due on April 24. There was no indication that the Court plans to hold a new hearing on the case; presumably, the continuing validity of Jackson will be decided as part of a final ruling.

The state of Louisiana, in its written arguments in Montejo, did not urge the Court to reconsider Michigan v. Jackson, but a group of 17 states did in an amicus brief. That brief contended that the “Jackson rule” was not necessary to protect the right of counsel of a suspect in police custody.

All the protection that the suspect needs in that setting, those states contended, is the protection of the Court’s 1981 decision in Edwards v. Arizona, requiring a clearcut assertion of the right to have counsel present during police questioning.

The states’ brief added: “Ultimately, the Jackson rule is unnecessary because it provides no more protection than already provided by the Edwards rule. Where, as here, there is no indication that the defendant has chosen to communicate to police only through counsel, a police request for a waiver of the right to counsel at an interview is not coercive or ‘badgering.’ As a result, there is no need for a prophylactic rule such as the Jackson rule because there is no Sixth Amendment violation from the police-initiated interrogation. The Jackson rule should be abandoned.”

The order in Montejo was the only one the Court issued Friday following its private Conference. Additional orders are expected on Monday morning.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. On Tuesday the Court announced its decision in Direct Marketing v. Brohl. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]